If you’ve been sued over a dispute involving your business, it’s important to know how to defend yourself and it’s often not enough to just deny the claims made against you. Let me repeat that, you need to do more than just deny it, even if the person suing you is completely bonkers.
Here’s a game plan:
Step One: Don’t DIY this. Call a lawyer for a consult and make sure the lawyer specializes in the type of litigation you are involved in. Litigation is highly specialized. Some litigators focus on divorce, some focus on discrimination, some litigators focus on business or contract disputes. I know, it seems obvious to say hire a litigator with experience, but really, it’s crucial to pay attention to the types of cases the lawyer has handled.
Some lawyers offer free consults, and some lawyers charge. My suggestion is that if you are being charged – which isn’t necessarily a bad thing – ask the attorney if you may send a copy of the complaint and a few of your most urgent questions to the lawyer ahead of time so that during the consult the lawyer’s advice is specific to your situation. It’s fine to pay a lawyer for their time, but if you are paying, the advice should be specific to your situation, not just general advice.
Timing matters – you only have 28 days to respond to the Complaint by filing an Answer. And you want to give your lawyer (or, yourself, if you decide to represent yourself) plenty of time to dissect the facts and assess what affirmative defense should be raised and if a counterclaim should be brought. The clock starts ticking once you are served, so it’s best to speak with a lawyer soon to give the lawyer time to get a good grasp of the facts to better represent you.
Step Two: Examine preliminary matters.
Sometimes, if there truly is no merit whatsoever to the complaint brought against you, or if there is no jurisdiction or venue is not proper, your lawyer can file a motion for judgment on the pleadings, which can end the matter right there! That’s a dream come true!
Additionally, your lawyer should make sure that you were served the proper way. Generally, service of the lawsuit is made by certified mail service sent to your business’s statutory agent. Sometimes, people are served personally via a process server. My point is that hearing about it through the grapevine is not proper service, or having the plaintiff hand you a copy is not proper service.
Step Three: Responsive pleadings.
If there are no obvious problems with the complaint, then you or the lawyer you hired will file an Answer. In the Answer, you simply deny or admit each allegation (mostly, you are denying, hopefully!). Then, your lawyer goes to work on developing the affirmative defenses. Some affirmative defenses include failure to state a claim upon which relief can be granted, using the equitable doctrines of waiver and estopple, arguing a lack of consideration / there is no valid contract, making an argument for contributory negligence, or citing the actions and omissions of others, and more.
If you have your own causes of actions, and often, you will, you will file a counterclaim along with your answer. It is rare that only one side breaches a contract, because often, when one side perceives a breach, they stop paying, and so, you, as the defendant will need to assert any claims you have for nonpayment. Your lawyer will help you understand what, if any, claims you may bring against the person suing you.
Step Four: Decide how you will manage your emotions around the lawsuit. It is no secret that being sued, or having to sue, is stressful. But, deciding ahead of time how you will manage yourself and the stress is crucial to coming out of the process as unscathed as possible. Generally, this comes down to choosing thoughts about the lawsuit that will serve you, not disempower you, or cause you unnecessary overwhelm, worry, or anger.
This is just the tip of the iceberg and was meant to give you a snapshot of what the beginning stages of litigation look like. I hope this helps you understand what to expect! And, as always, the best thing to do is avoid lawsuits by having an attorney review or draft your contracts and advise you on best practices for operating your particular business.
Wick Law is a business law firm that specializes in litigation. Please contact our firm to discuss your matter and determine your next steps.
Wick Law, LLC is a small business legal practice, representing owners, investors, and entrepreneurs in all aspects of commercial, corporate, and business law, estate planning, contracts and negotiations, business litigation, and real estate. For more information: Contact 614-572-6366, visit www.mwicklaw.com, or email us at firstname.lastname@example.org. Wick Law, LLC is located in Columbus, Ohio.
(Materials in this article have been prepared by Wick Law, LLC for general informational purposes only. This list is for educational purposes and is not to be considered exhaustive. More items could be added to this checklist based upon the type of transaction or industry standards. These materials do not, and are not intended to, constitute legal advice. The information provided is not privileged and does not create an attorney-client relationship with Wick Law, LLC or any of the firm’s lawyers. This checklist is not an offer to represent you. You should not act, or refrain from acting, based upon any information in this checklist. Wick Law, LLC maintains offices in Columbus, Ohio, and has lawyers licensed to practice in Ohio and in the United States District Court, Southern District of Ohio. The firm does not intend to practice law in any jurisdiction where the firm is not licensed.)
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